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2014 DIGILAW 887 (PAT)

Raj Kapoor Ram v. State of Bihar

2014-08-19

JITENDRA MOHAN SHARMA, NAVANITI PRASAD SINGH

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JUDGMENT NAVANITI PRASAD SINGH, J. The three appellants, having been found guilty for offences punishable under Sections 302/34 and 364 of Indian Penal Code (IPC), having been sentenced to life imprisonment and rigorous imprisonment for ten years respectively by judgment and order dated 30.04.1992/07.05.1992 passed by the Additional Sessions Judge IV, Aurangabad in Sessions Trial No. 6 of 1987/92 of 1987, have filed this appeal. 2. The deceased Bijay Ram is the first cousin and immediate neighbour of the appellants Raj Kapoor Ram and Ghanshyam Ram and apparently is also related to Sarkar Ram, the third appellant. 3. The prosecution case is based upon Fardbayan of Kamlesh Ram (PW 2), inter alia, stating that on 16.05.1986 at about 9 pm, the three appellants came to his house and asked Bijay Ram, the brother of the informant Kamlesh Ram (PW 2) to carry some luggage to the Sone Nagar Railway Station as the appellants Raj Kapoor Ram and Ghanshyam Ram were going to their father’s place at Barwadih in the district of Palamau where he worked in the railways. The first two appellants are sons of Mahabir Ram who is the own brother of Gulab Ram (PW 1), the father of the deceased Bijay Ram. As such, it would be seen that the appellants No 1 and 2 are first cousins of the deceased. The deceased Bijay Ram asked his uncle Nabab Ram who was there and he asked Bijay Ram to accompany the appellants. This was at 9 pm. When, till midnight, Bijay Ram did not return, informant and family members did not worry because Bijay Ram invariably used to go with his cousins and stay with his uncle (father of appellants No 1 and 2) at Barwadih. In the morning at about 7 am, they were informed that Bijay Ram had been killed and his body was lying outside the village. They went, identified the body and, accordingly, upon information, the police came and recorded the statement. As per the Fardbayan, informant suspected it to be handy work of the three appellants because there was some family dispute. Upon the first information report being registered, police took up investigation and, upon completion of investigation, filed chargesheet against the three appellants who were then charged under Sections 364 and 302/34 of IPC to which they pleaded not guilty and were, accordingly, tried and convicted. 4. Upon the first information report being registered, police took up investigation and, upon completion of investigation, filed chargesheet against the three appellants who were then charged under Sections 364 and 302/34 of IPC to which they pleaded not guilty and were, accordingly, tried and convicted. 4. In order to establish the charge, prosecution has examined eight witnesses. Let it be noted that out of the eight witnesses, four have been tendered. They are all relations of the appellants and the informant. PW 1 is Gulab Ram, the father of the deceased Bijay Ram. PW 2 is Kamlesh Ram, the brother of the deceased Bijay Ram. PWs 3 to 6 are tendered witnesses. PW 7 is Laxman Ram who is a formal witness who says that he was a witness to the inquest report which report has not been brought on record. PW 8 Ram Bhuwan Ram is the Investigating Officer (IO). 5. The case is based upon the last seen theory and totally on proof of circumstances. There are only two material witnesses that is PW s 1 and 2. 6. PW 1 Gulab Ram, the father of the deceased states that in the night at about 9 pm of 16.05.1986, the three appellants came and requested Bijay Ram to help them carry their luggage and accompany them to Sone Nagar Railway Station as they were going to their father Mahabir Ram. Nabab Ram (PW 4), one of the other uncles present in the house, asked Bijay Ram to accompany. Accordingly, Bijay Ram went with the three appellants. In his cross-examination, this witness categorically admits that there have been no dispute and differences between him and Mahabir Ram, the father of appellants No 1 and 2. He admits that they had no cause earlier to suspect that the appellants would have committed the crime inasmuch as Bijay Ram frequently used to go with them and stay with their father who happens to be Bijay Ram’s uncle as well. We then have PW 2, the informant whose deposition is virtually the same. This is the only evidence we have. In nutshell what we have, the three appellants asked Bijay Ram to accompany them to the Railway Station at 9 pm and the next morning, the dead body of Bijay Ram was found. We then come to PW 8, the IO. He has clearly described the place of occurrence. This is the only evidence we have. In nutshell what we have, the three appellants asked Bijay Ram to accompany them to the Railway Station at 9 pm and the next morning, the dead body of Bijay Ram was found. We then come to PW 8, the IO. He has clearly described the place of occurrence. From the village of the informant and the accused persons, the Railway Station is one and half kilometers to the west whereas the body of Bijay Ram was found at a desolated place one kilometer to the east of the village with lot of blood lying on the ground meaning thereby that Bijay Ram had been killed there. In his deposition, the IO states that in course of investigation, he had learnt that there were disputes between the families which fact is denied by the two prosecution witnesses themselves. The prosecution then brings on record two communications received from the High Court. They are with regard to the anticipatory bail applications filed by the appellants in respect of the present case in which it was stated that there were some family disputes because of which they have been implicated. In one of the applications, it was stated that appellant Raj Kapoor Ram had filed a case under Section 396 of IPC against Gulab Ram about eight years back. It is because of that they have now been falsely implicated. 7. At this juncture, we would like to note that any statement made in any bail application filed on behalf of any accused which is not affidavited by him cannot ever be used against him as evidence. This is elementary. This is based on the principles enshrined in Article 20 (3) of the Constitution of India which lays down that no person accused of any offence shall be compelled to be a witness against himself. It is for this reason that criminal applications filed for bail, quashing or even criminal writ cannot be filed duly sworn by the accused himself and if that be so then how such an affidavit, which has been sworn by someone else, is used as evidence against the accused. We are noting this because the learned Additional Sessions Judge, who tried this case, has relied on this as an evidence of enmity between the accused and the informant’s family even though the informant and his father deny any dispute. We are noting this because the learned Additional Sessions Judge, who tried this case, has relied on this as an evidence of enmity between the accused and the informant’s family even though the informant and his father deny any dispute. The Sessions Court virtually made out a third case to convict. 8. Thus, the evidence of the IO does not help the prosecution in any manner. It makes it worse when the IO identifies the place where the body was found which is totally in a different direction from the Railway Station. It is not the case of the prosecution ever that the appellants did not go to their father’s place. In fact, this aspect does not appear to have been investigated at all. 9. Thus, the only evidence being that at 9 pm, the appellants asked Bijay Ram to accompany them to the Railway Station and then his dead body was found at about 7 am on the next day from a different place. It is just on this evidence that the appellants have been convicted. We are surprised. It is well settled that where conviction is to be based upon proof of circumstances then those circumstances have to form an unbroken chain of events from which the only conclusion that can be drawn is about the guilt of the accused. Any unexplained intervening period would break the chain. Here, there is no dispute that they were closely related. There is no dispute that the deceased and the appellants frequently used to go together. There is no dispute that the appellants were going to the Railway Station to go to their father. They left the house with the deceased at about 9 pm to go to the station. No one found it unusual in any manner. Bijay Ram was permitted to go and accompany the appellants. It is, thereafter, in the morning, his body is found not near the Railway Station but in the opposite direction and opposite side of the village. How are the chains of events unbroken and complete? We feel surprised. How on this evidence, could the appellants be convicted? Further, when PWs 1 and 2, who are the father and brother of the deceased respectively themselves say that there is no enmity between the families, how could the IO assert the same and how could the Judge make out a third case? We feel surprised. We feel surprised. How on this evidence, could the appellants be convicted? Further, when PWs 1 and 2, who are the father and brother of the deceased respectively themselves say that there is no enmity between the families, how could the IO assert the same and how could the Judge make out a third case? We feel surprised. The case would be made out based upon the evidence led by the prosecution and there being only two witnesses who denied such suggestion then it is not open to the learned Additional Sessions Judge to make out a third case or the Public Prosecutor to make out a different case. 10. In that view of the matter, we have no option but to allow this appeal holding that the prosecution has miserably failed to prove its case beyond reasonable doubts. The appellants are entitled to acquittal. The judgment and order of conviction is set aside. The appellants are discharged from the liabilities of their bail bonds. Appeal allowed.